Volume 298 — North Carolina Reports

1. Searches and Seizures 33 — items in plain view in dwelling The seizure of suspicious items in plain view inside a dwelling is lawful if the officer possesses legal authority to be on the premises. 2. Searches and Seizures 10 — warrantless search — probable cause — exigent circumstances A warrantless search is not unconstitutional when (1) probable cause to search exists and (2) the government satisfies its burden of demonstrating that the exigencies of the situation made search without a warrant imperative. 3. Arrest and Bail 5.2; Searches and Seizures 10 — warrantless entry into dwelling to make arrest An officer's warrantless entry into defendant's trailer dwelling for the purpose of arresting defendant for murder was lawful where the first officer who arrived on the scene observed the victim's body lying on the ground near her son's trailer; the victim's son told the officer that defendant had shot his mother and, when asked where defendant was, pointed toward defendant's trailer located some 150 feet away; the first officer directed another officer to go to defendant's trailer to apprehend him; the second officer went to the trailer, knocked on the door and, when no one answered, went in; the officer took into custody a rifle which was in plain view on a couch in the trailer; the officer then looked through the trailer, found no one, and left. Consequently, the officer had legal authority to be in defendant's trailer, and his seizure of the rifle was lawful. 4. Searches and Seizures 41 — failure of officer to announce purpose and authority before entry — seizure of rifle — reason to believe notice would present danger to life — no substantial violation of statute Where an officer had been informed that the person who shot the deceased was in a nearby trailer, the officer went to the trailer and, after knocking, opened an unlocked door, instantly saw and seized a rifle on the sofa near the door, and then announced his purpose and authority to an empty trailer, the officer's failure to announce his purpose and authority before entering the trailer did not require the exclusion of the seized rifle under G.S. <cross_reference>15A-401</cross_reference>(e)(1)c since (1) the<page_number>Page 136</page_number> officer might reasonably have believed that giving notice of his authority and purpose to arrest defendant "would present a clear danger" to his life within the meaning of that statute, and (2) his conduct, if error, was not a substantial violation of the statute. 5. Bills of Discovery 6 — defendant's statement not provided — motion to exclude or to grant continuance — prosecutor unaware of statement until trial — opportunity to interview officer The trial court did not abuse its discretion in the denial of defendant's motion to exclude an inculpatory statement made by him to the arresting officer or to grant a continuance because the State had failed to provide such statement pursuant to defendant's request for discovery where the district attorney first learned of defendant's statement during the lunch hour of the day the statement was offered in evidence, and as soon as the statement came to his attention he notified defense counsel and arranged for him to interview the arresting officer prior to the reconvening of the afternoon court session. 6. Homicide 4.1 — first degree murder — lying in wait When G.S. <cross_reference>14-17</cross_reference> speaks of murder perpetrated by lying in wait, it refers to a killing where the assassin has stationed himself or is lying in ambush for a private attack upon his victim. However, it is not necessary that the assassin be actually concealed in order to lie in wait. 7. Homicide 4.1; 25.2 — instructions on lying in wait The State's evidence in this first degree murder case supported the court's instructions on lying in wait where it tended to show that defendant was parked facing the highway by which the victim would return to her son's trailer; as the victim passed by defendant, he pulled in behind her car, and when she pulled into the trailer lot, defendant, who had been right on her bumper, sped past her toward his own nearby trailer; while the victim carried packages into her son's trailer, defendant stationed himself beside or behind a tree 150 feet away on higher ground; and when the victim went back outside to get her pocketbook from the fender of the car, defendant called to her and immediately fired a single lethal shot. 8. Homicide 30.1 — murder by lying in wait — failure to submit second degree murder The trial court did not err in restricting the jury to the two possible verdicts of guilty of murder in the first degree or not guilty where all the evidence shows that the murder was committed by lying in wait, and the controverted question was the identity of defendant as the murderer.

1. Appeal and Error 38 — settlement of case on appeal — clerk's certification — filing of settled record — actions not timely The Court of Appeals had no authority on 5 June 1978 to consider the merits of the trial court's order entered on 27 September 1977, since defendant failed within ten days of the settlement of the case on appeal to obtain the clerk's certification of the record and failed within 150 days of giving notice of appeal to file the settled record in the Court of Appeals, and the trial court had dismissed the appeal on 6 April 1978. 2. Appeal and Error 22.1 — certiorari to preserve exception to settlement of record — appeal not kept alive The trial court's order was not placed before the Court of Appeals for review by way of defendant's petition for certiorari, since that petition was made solely for the purpose of preserving an exception to the trial judge's settlement of the record, and it did not itself serve to keep alive the case on appeal.<page_number>Page 232</page_number> 3. Appeal and Error 17 — stay of trial court's order — appeal from order not perfected — motion to dissolve stay improperly denied The Court of Appeals erred in denying plaintiff's motion to dissolve a stay of the trial court's order since the appeal of the order to which the stay was directed was not perfected.

Homicide 19.1 — defense of accident — evidence of deceased's reputation inadmissible In a homicide prosecution in which defendant relied on the defense of accident, the trial court properly excluded testimony by the victim's former wife that the victim was a dangerous man and that she had told defendant of the victim's reputation prior to the time of the killing, since evidence of the victim's character traits is admissible under certain circumstances only in cases involving self-defense and is not relevant to a determination of whether defendant's pistol discharged accidentally and inflicted the fatal wounds.

Contracts 29.2, 29.3 — breach of contract to make long-term loan — special and compensatory damages Where defendant lender breached a commitment to provide long-term financing for plaintiffs' motel construction project, a substitute loan was unavailable upon any terms at the time of the breach, and, in order to forestall foreclosure, plaintiffs had to refinance their construction loan by a demand note at a fluctuating rate of interest which was higher than that called for by defendant's commitment, plaintiffs are entitled to recover the following special and compensatory damages for defendant's breach of the loan commitment; (1) amounts which they expended for additional title insurance and for brokerage, accounting and appraisal fees in refinancing their construction loan and in their unsuccessful attempts to secure a substitute long-term loan; (2) the interest plaintiffs have paid on the demand note between the date of defendant's breach of its commitment and the date of trial, less the amount of interest plaintiffs contracted to pay defendant between those dates; and (3) the present value of the difference between the interest payments at 9 1/2% per annum which would be owed under the contract between the date of the trial and the end of the credit period and interest which would have been paid during the same period for a loan bearing interest at 10 1/2% per annum, the rate found by the trial court to be the lowest prevailing rate of interest on the date of the breach for a long-term commercial loan.

1. Automobiles 126.3 — breathalyzer test — right to consult attorney — applicability of 30 minute time limit G.S. <cross_reference>15A-501</cross_reference>(5), which gives a criminal defendant a right to consult with an attorney within a reasonable time after arrest, does not apply to breathalyzer tests, and the 30 minute time limit referred to in G.S. <cross_reference>20-16.2</cross_reference>(a)(4) applies both to the purpose of calling an attorney and the purpose of selecting a witness to view the breathalyzer testing procedure. The contrary opinion of Price v. Dept. of Motor Vehicles, <cross_reference>36 N.C. App. 698</cross_reference> (1978) is overruled. 2. Automobiles 126.3 — willful refusal to take breathalyzer test — elapse of time while awaiting attorney's call The trial court properly found that plaintiff "willfully refused" to submit to a breathalyzer test where there was evidence tending to show that plaintiff was advised that the test could not be delayed for more than 30 minutes and that if plaintiff did not take the test it would be noted as a refusal; plaintiff refused to take the test until he talked with his attorney; the breathalyzer operator on three occasions warned plaintiff that his time was running out and told plaintiff how many minutes he had left; and the 30 minute time limit expired while plaintiff was waiting for an attorney to return his call.<page_number>Page 454</page_number> 3. Automobiles 126.3 — breathalyzer test — no right to consult attorney The operator of a motor vehicle in North Carolina has no constitutional right to confer with counsel prior to making a decision on whether to submit to a breathalyzer test since (1) proceedings involving the suspension or revocation of a license to operate a motor vehicle are civil, not criminal, in nature, and (2) anyone who accepts the privilege of driving upon the highways of this State has consented, pursuant to G.S. <cross_reference>20-16.2</cross_reference>(a), to the use of the breathalyzer test and has no constitutional right to consult a lawyer to void that consent. 4. Automobiles 126.3 — breathalyzer test — 30 minute time limit — constitutionality The strict 30 minute limitation of G.S. <cross_reference>20-16.2</cross_reference>(a)(4) for taking a breathalyzer test is not irrational and violative of due process, since the State must balance its need to test the person arrested for driving under the influence before evidence of his condition metabolizes away with the arrestee's statutory right to consult counsel before undergoing the test.

1. Searches and Seizures 3 — warrantless inventory search by military authorities of soldier's billet — subsequent "second look" at inventoried items A warrantless search by military authorities of a military billet of a soldier detained by civilian authority, or otherwise absent without leave, to make an inventory of his belongings and to secure them for safeguarding pursuant to military regulation without any investigative purpose was not an unreasonable search or seizure proscribed by the Fourth Amendment. Furthermore, a "second look" by military authorities at some of the inventoried and secured items three days later did not constitute another search subject to Fourth Amendment proscriptions. 2. Criminal Law 84; Searches and Seizures 3 — inventory search by military authorities — admissibility of items in civilian trial Evidence obtained by military authorities in an inventory of soldiers' possessions was not required to be excluded in a civilian criminal trial of the soldiers on the ground that the surrender of the evidence by military to civilian authorities violated the Posse Comitatus Act, <cross_reference>18 U.S.C. § 1385</cross_reference>, since (1) a violation of the Act would not call for invocation of the exclusionary rule, and (2) such passive activities of military authorities which incidentally aid civilian law enforcement are not precluded by the Act. 3. Criminal Law 92 — antagonistic defenses by two defendants — test of whether severance required The test of whether antagonistic defenses by two defendants required severance of their trials is whether the conflict in defendants' respective positions at trial was of such a nature that, considering all of the other evidence in the case, defendants were denied a fair trial. 4. Criminal Law 92 — two defendants — when severance of trials required A severance of the trials of two defendants should ordinarily be granted where their defenses are so irreconcilable that the jury will unjustifiably infer that this conflict alone demonstrates that both are guilty, or where their defenses are so discrepant as to pose an evidentiary contest more between defendants themselves than between the State and the defendants. 5. Criminal Law 92.1 — inconsistent testimony by two defendants — severance not required Although the two defendants in a rape, burglary and armed robbery trial gave inconsistent testimony as to whether the first defendant loaned the second defendant his car on the date of the crimes and whether jewelry found in the first defendant's locker was sold to him by the second defendant, defendants were not denied a fair trial by the refusal of the trial court to sever their trials since the State itself offered plenary evidence of both defendants' guilt and did not simply stand by<page_number>Page 574</page_number> and rely on the testimony of defendants to convict them; neither defendant testified directly to the other defendant's guilt and both defendants denied any participation in the crimes; each defendant was subject to cross-examination by the other; the first defendant could have testified to the same matters tending to implicate the second defendant at a separate trial of the second defendant; and the conflict between each defendant's respective testimony was not of such magnitude when considered in the context of other evidence that the jury was likely to infer from that conflict alone that both were guilty. 6. Criminal Law 92.1 — joinder of defendants' trials — evidence competent against one considered against both — absence of objection Joinder of defendants' trials was not erroneous because evidence competent against only one defendant was allowed to be considered against both and the trial judge, in reviewing the evidence against one defendant, alluded to items of stolen jewelry which the State's evidence tended to show were found in the second defendant's locker, where defendants failed to make timely objection to the evidence and motions for limiting instructions and failed to object to the court's recapitulation of the State's evidence. 7. Attorneys at Law 6 — codefendant represented by defendant's former counsel — necessity for showing of prejudice Prejudice warranting a new trial does not automatically result to a defendant whose codefendant is represented by counsel who formerly represented both defendants when testimonial conflicts between defendants develop at trial. Rather, a new trial is warranted only when defendant can show actual prejudice, which means more than a defendant's having been damaged at trial by the actions of his former attorney and requires that the record show that the attorney took advantage of the former relation in some way at the subsequent trial or that the former relation put the attorney in a better position to inflict the damage than he otherwise would have had. 8. Attorneys at Law 6 — codefendant represented by defendant's former counsel — absence of prejudice Defendant failed to show prejudice arising from having his former lawyer represent his codefendant at trial where questions asked defendant by his former attorney on cross-examination and the former attorney's jury argument did not suggest that they were engendered by information obtained during the former relation or that the former relation put defendant at any other disadvantage at his trial, and where defendant acquiesced in his former attorney's representation of the codefendant by failing to object at trial. 9. Jury 9 — inability of juror to attend session on Saturday — replacement with alternate juror The trial court did not abuse its discretion in excusing a juror and substituting an alternate juror when the juror indicated that she could not attend a session of court on Saturday. 10. Criminal Law 33 — holster and ammunition in defendant's car — irrelevancy — harmless error In this prosecution for burglary, rape and armed robbery in which the victims testified that their assailants were armed with a "short<page_number>Page 575</page_number> golden type or silver pistol," evidence that a holster and box of small caliber bullets were discovered in one defendant's car at the time of defendants' arrest six days after the crimes, if irrelevant, was not prejudicial where such evidence constituted only an insignificant part of the State's case, and there is no reasonable basis to believe the jury would have returned a different verdict had the evidence been excluded. 11. Burglary and Unlawful Breakings 6.4 — propriety of instructions on constructive breaking The trial court properly instructed the jury on constructive breaking in a burglary case where the evidence tended to show that one of the defendants pointed a gun at the male victim as he was standing at the door of his motel room; when the female victim opened the door she saw the gun pointed at the male victim's head; the male victim was then "kind of shoved into the room"; and neither defendant was given permission to enter the room. 12. Burglary and Unlawful Breakings 7 — first degree burglary — refusal to submit lesser offenses The trial court in a first degree burglary case did not err in refusing to submit the lesser included offense of felonious breaking and entering where the evidence tended to show only a burglarious breaking; nor did the court err in refusing to submit second degree burglary where the uncontradicted evidence showed that the sleeping apartment in question was occupied when defendants gained entry thereto. 13. Burglary and Unlawful Breakings 6 — motel room as "sleeping apartment" — expression of opinion — harmless error The trial court's statement to the jury that the motel room in question was a "sleeping apartment" for purposes of applying the law of burglary constituted an impermissible expression of opinion or an assumption that a material fact had been proved in violation of G.S. <cross_reference>15A-1232</cross_reference>; however, such error was harmless since there can be no serious contention that a motel room, regularly and usually occupied by travelers for the purpose of sleeping, is not in fact a "sleeping apartment" within the meaning of the law of burglary, defendants did not contest the "sleeping apartment" issue at trial other than by their general pleas of not guilty, and there is no reasonable possibility that this error contributed to defendant's conviction. 14. Criminal Law 33.1 — evidence of investigation of another person — absence of prejudice In a criminal prosecution in which an officer testified that the victims had selected the photograph of a person other than defendant from a police photograph book, defendant was not prejudiced by the officer's irrelevant testimony about his subsequent investigation of the other person since the inference raised by the evidence was favorable to defendant. 15. Criminal Law 84, 89.6 — use of suppressed receipt to refresh recollection The State's presentation to defendant of a receipt which had previously been suppressed as evidence, the court having found that it was seized in an unconstitutional search, for the purpose of refreshing<page_number>Page 576</page_number> his recollection of the date his car had been repaired did not constitute the use of "tainted evidence" to impeach defendant. Even if showing the receipt to defendant was error of constitutional dimension, the error was harmless since the date defendant's car was repaired was immaterial to the crimes charged and the receipt could not have contributed in any way to defendant's conviction. 16. Criminal Law 66.6, 66.15 — lineup — officer's remark that witness picked "right person" — courtroom identification not tainted A witness's courtroom identification of defendant was not rendered inadmissible on the ground of improper out-of-court suggestiveness because an officer had told the witness after she picked defendant in a lineup that she had picked the "right person" since (1) the witness did not make an independent identification of defendant in court but merely identified defendant as the man she chose in the lineup, and the lineup was properly found by the court to be free from undue suggestiveness; (2) even if the identification at issue was an in-court accusatory identification, it was not fatally tainted by pretrial suggestiveness because the officer's remark did not serve in this case to strengthen an initially tentative identification; and (3) even if the comment raised an aura of suggestiveness around the totality of the pre-trial identification process, the suggestiveness did not give rise to a substantial likelihood of misidentification at trial where there was plenary evidence of the inherent reliability of the witness's courtroom "identification" of defendant, and the ample opportunity of the witness to view the events and actors at the time of the crimes supports a conclusion that her in-court "identification" of defendant had an origin sufficiently independent of the taint of a single improper remark. 17. Criminal Law 66 — touching defendant on shoulder to identify The trial court did not err in permitting a witness to touch one defendant on the shoulder to identify the person about whom she was testifying. 18. Searches and Seizures 43 — motion to suppress at trial not timely The trial court did not err in the denial of defendant's motion at trial to suppress a watch seized pursuant to a search warrant where there was no contention that defendant did not have a reasonable opportunity to submit the motion prior to trial as required by G.S. <cross_reference>15A-975</cross_reference>, and there was no suggestion that other circumstances existed which, under the statute, would permit a motion to suppress made at trial, it not being impermissible for the State to impose reasonable conditions on the assertion of motions to suppress evidence.

1. Constitutional Law 30 — list of State's witnesses — bill of particulars properly denied The trial court did not err in denying defendant's motions for a bill of particulars since all of the information sought in defendant's first motion was contained in material which she received during pretrial discovery, and since her second motion was for a list of the State's witnesses which was information to which defendant was not entitled. 2. Constitutional Law 30 — statements by defendant to witnesses — pretrial discovery The trial court erred in requiring the State to disclose to defendant before trial statements by witnesses containing remarks made to them by defendant, and since such error was favorable to defendant, she cannot complain that it was error for the trial judge to refuse to order disclosure by the State of the time and place where and to whom they were made; moreover, defendant's argument that nondisclosure of this information denied her her constitutional right to effective assistance of counsel was misplaced since (1) discovery issues that rise to the level of a constitutional issue are generally considered under the due process clause, and (2) when defendant is constitutionally entitled to disclosure of evidence favorable to him that is material to his guilt or punishment, such disclosures must be made only at trial, while the problem in this case involved pretrial discovery. 3. Criminal Law 70; Constitutional Law 43 — conversation recorded during investigatory stage — no right to counsel The trial court in a homicide prosecution did not err in admitting into evidence a tape recorded conversation between defendant and a witness where the conversation occurred during the investigatory stage of the case before arrest was made; no critical stage had been reached at the time the tape was made so that the Sixth Amendment right to counsel had not yet attached; and use of the tape at trial violated none of defendant's constitutional rights. 4. Criminal Law 70; Constitutional Law 43 — defendant's appearance before district court judge — subsequent conversation recorded — no necessity for counsel The trial court in a first degree murder case did not err in allowing into evidence a recorded statement by defendant to a witness which was made after defendant's initial appearance before a district court judge but before the probable cause hearing, indictment and arraignment, since defendant's initial appearance before the district court judge was not a critical stage of the proceedings, and the Sixth Amendment was therefore inapplicable because the right to counsel had not yet attached. G.S. <cross_reference>15A-601</cross_reference>(a).<page_number>Page 605</page_number> 5. Criminal Law 70 — tape recordings — requirements for authentication To insure proper authentication of a tape recording the State must show that the recorded testimony was legally obtained and otherwise competent; the mechanical device was capable of recording testimony and it was operating properly at the time the statement was recorded; the operator was competent and operated the machine properly; the identity of the recorded voices; the accuracy and authenticity of the recording; defendant's entire statement was recorded and no changes, additions or deletions have since been made; and custody and manner in which the recording has been preserved since it was made. 6. Criminal Law 70 — tape recordings — authentication evidence sufficient Tapes of conversations between defendant and witnesses were properly authenticated where the evidence tended to show that an officer showed the witness how to operate the machine and checked to see that it was operating properly; he was with the witness when the recording was made; the recorder was properly activated at the beginning of the conversation; they played the tape immediately after the conversation was recorded to check for accuracy; the officer had operated the machine many times in the past; the requisite holes had been knocked out on each side of the tape to prevent erasure; the officer had custody of the tape from the time it was made until trial; the witness identified the voices on the tape and testified that the tape contained the exact conversation she had with defendant; and basically similar testimony was given by the officer and another witness concerning the recorded conversation between defendant and that witness. 7. Criminal Law 117.1 — prior consistent statements — jury instructions proper The trial court properly instructed the jury to consider prior consistent statements only for the purpose of corroborating the witness's testimony at trial if the jury found that the prior statements did corroborate the trial testimony, but it was not prejudicial error for the court on other occasions to omit the words, "if you find that this statement does corroborate his/her testimony," nor was it error for the court on other occasions to fail to instruct with respect to prior consistent statements in the absence of request by defendant; furthermore, there was no merit to defendant's contention that the trial judge failed to charge the jury adequately on the nature and weight to be given the prior consistent statements used to corroborate the witness's testimony at trial. 8. Criminal Law 113.1 — jury instructions — summary of testimony The trial judge did not commit prejudicial error in instructing the jury that "you are to rely on your own recollection as to what a witness said or didn't say." 9. Criminal Law 42.6 — body samples from deceased — chain of custody — test results admissible In a prosecution of defendant for the first degree murder of her husband by poisoning, there was no merit to defendant's contention that results from tests performed on specimens from deceased's body were improperly introduced into evidence because a sufficient chain of<page_number>Page 606</page_number> custody was not established, since the evidence tended to show that the pathologist who performed the autopsy on deceased removed specimens from the body, placed them in sealed containers which he then placed in mailing containers, and mailed them to the State Toxicology Laboratory; one of the laboratory personnel picked up the samples from the Post Office and took them to the laboratory; the samples were placed on a bench over which five or six persons had supervision; and the possibility that the specimens from deceased were interchanged with those from another body was too remote to require exclusion of the evidence. 10. Homicide 21.6 — death by poisoning — sufficiency of evidence There was sufficient evidence of first degree murder by means of poisoning to take the case to the jury where it tended to show that, over a period of time, defendant sought ways to kill her husband and that an eyewitness saw her put arsenic poisoning in deceased's tea, food and ice cream in January, February and March of 1977 through use of Terro Ant Killer which contains a lethal dosage of arsenic; deceased died in June 1977; and in the opinion of medical experts he died of arsenic poisoning. 11. Constitutional Law 33: Homicide 31.1 — murder by poisoning — dates of murderous acts — ex post facto punishment — death penalty improperly imposed For purposes of the prohibition against ex post facto legislation, the dates of the murderous acts rather than the date of death is the date the murder was committed; therefore, where defendant administered poison to her husband on three occasions, all before 1 June 1977, at a time when the maximum punishment for first degree murder was life imprisonment, then imposition of the sentence of death under G.S. <cross_reference>15A-2002</cross_reference> violated the prohibition against imposition of an ex post facto punishment.

1. Uniform Commercial Code 36 — check — allegations of forgery — insufficiency to prove breach of warranty of good title Unproven and contested allegations of forged endorsement on a check are insufficient as a matter of law to breach a warranty of good title under G.S. <cross_reference>25-4-207</cross_reference>. 2. Principal and Agent 4 — endorsement of check for another person — issue as to agency — summary judgment improper Though one defendant alleged that a second defendant had given him an oral "power of attorney" to endorse a check for loan proceeds written by plaintiff bank, defendant's version of the facts indicated that he was acting as the second defendant's general agent, and it was not necessary that the agency be under a written grant of authority; therefore, whether defendant endorsed the check as real or implied agent of the second defendant and the endorsement was therefore valid and not a forgery was a question of fact for the jury, and the trial court erred in granting summary judgment for plaintiff.

Contracts 27.1 — contract alleged and denied — summary judgment inappropriate In an action to recover for construction work on defendants' home renovation project, the trial court erred in entering summary judgment for defendants where defendants' affidavit submitted in support of their summary judgment motion did not challenge or alter the fact that the complaint alleged, and the answer denied, the existence of a contract between the parties, and defendants therefore did not meet their burden of proving that there was no genuine issue of fact.